Ontario Creates Wilderness Guide Minimum Wage - updated with input from the Ministry of Labour

photo: https://rescue.borealriver.com/expedition-resources/river-guide-soft-skills/

Updated Feb. 1, 2021

This past summer, June 3, 2019 to be exact, Ontario (Canada) became the first province in the country to establish a minimum wage for wilderness guides. Some parts of this is good news, and some is bad. I will detail the exceptions, then get to the interesting story part of this, and outline the issues that this gives rise to.

It should be noted that British Columbia already has in place wilderness guide exceptions to that province's labour code. The B.C. exception is limited to no overtime and no limits on the number of hours worked (i.e. guides are exempt from overtime limits, link here). The new Ontario exceptions include these, and extend to establishing a guide minimum wage.

Definitions: Ontario basically adopted B.C.’s definition of a ‘wilderness guide’, with slight variation. B.C. defines:

"wilderness guide" means a person employed primarily to guide, teach or assist one or more persons while those persons are engaged in recreational activities in a wilderness environment, including the following activities: (original link to definition here)

(a) back-country skiing, cat-skiing, heli-skiing and snowshoeing;
(b) biking;
(c) canoeing, kayaking, rafting and jet boating;
(d) dogsledding;
(e) hiking;
(f) horseback riding;
(g) mountaineering and rock climbing;
(h) operating all-terrain vehicles or snowmobiles;
(i) wildlife viewing

Ontario’s version – see if you can spot the differences:

You are a wilderness guide if you are employed to guide, teach or assist a person or people while they are engaged in activities in a wilderness environment, including the following activities: (original link here)

• back-country skiing and snowshoeing
• canoeing, kayaking and rafting
• dogsledding
• hiking
• horseback riding
• rock climbing
• operating all-terrain vehicles or snowmobiles
• wildlife viewing
• survival training

Inexplicably, mountain bike or cycle touring guides are left off the Ontario list (which means that all labour laws apply to them, including overtime and holiday pay etc.). Apparently ‘survival training’ is seen as a micro sector worth noting (I’m not sure why).

The Ontario exception states that wilderness guides are not entitled to:

• daily and weekly limits on hours of work
• daily rest periods
• time off between shifts
• weekly/bi-weekly rest periods
• overtime pay
• public holidays or public holiday pay (link here)

Further, it establishes a minimum wage of $140 per day (5 hours or more) or $70 if under 5 consecutive hours (link here). **as of October 1, 2020, rates increased to $142.60 and $71.30, respectively, with the provincial hourly minimum wage increased to $14.25. These wages may change again in September, 2021.

Deductions for room and board, employer requirements for uniforms and safety equipment, training provisions etc. all still stand from the ESA.

Good news or bad news?

Firstly, this exception to Ontario’s Employment Standards Act (ESA) was implemented silently and without notice. Of the dozen operators I called afterwards, only one of them knew of the changes, and none of them were consulted in advance. It is not clear what the catalyst was for these changes  With a June implementation, summer contracts were already in place, potentially not in compliance with the new law. This is partly our fault, with no professional or industry association or group to represent our perspective or needs.

(Updated September 13, 2019: it turns out that a couple of wilderness expedition companies that had employees lodge complaints under the ESA lobbied the provincial government for an exemption to the hours/overtime limits. The minimum wage aspect was added by the MOL with a sympathetic, business oriented government in charge. Reportedly the whole process from lobbying to legislation was 4 months).

Secondly, there is some history here. There has been a persistent problem with the ESA regarding multi-day guiding, and the vast majority of employers/outfitting companies have not been in compliance. The ESA had no provision for ‘day rates’ of pay, which are typical of guide contracts. Employers glossed over issues like hourly pay, 24 hour days for multi-day guides, or working back-to-back-to-back 5 day trips. None of this was legal (and I worked 15 years of non-compliant guide contracts!). By default, many employers looked to the Hunting and Fishing guide exceptions that have been in place in Ontario for forever (well, almost for forever). The new wilderness guide exceptions are the exact same as the long standing hunting and fishing guide exceptions, so in effect the ESA now just reflects what operators were doing. The good news aspect is that now the typical operator is (hopefully) compliant, whether they know it or not. I’m not sure this is a good message to send to industry – break the law long enough and eventually the law will lower to include your behaviour.

The definition of ‘wilderness’ is up for debate, as it is the qualifier to the activities listed. For multi-day guides this is pretty straight forward, and the new ESA exclusions eliminate those long standing issues of day wage. Day guiding or instructing though is a whole can of worms. Teach canoeing in a city park and these exceptions do not apply to you (and time off, rest periods etc. do); teach canoeing at a ‘wilderness’ lake and the exceptions do apply… Note that Ontario’s general minimum wage is $14. The guide minimum of $70 for 5 hours works out to minimum wage ($14 x 5 = $70). Consider for 6 hours in a wilderness context now kicks up to the $140 day rate, which works out to $23/hr ($140/6hr). Employers would rather the minimum wage ($14 x 6hr = $84), so will try to stay out of the wilderness guide designation. Messy. Unfortunately it will be the workers who will have to haggle with the employer over this one.

Further on the definition, both Ontario and B.C. refer to a guide as someone who will “guide, teach or assist a person or people while they are engaged in activities in a wilderness environment”. Interaction with clients seems core to the role. What of the very long list of ‘other’ duties a guide has to fulfill? Preparing equipment, filing trip plans, loading trailers, maintaining vehicles, packing food, cleaning after a trip – do these activities still qualify under the wilderness guide exception? It is typical to pay guides for a day or two on either end of their expeditions for this work. Is it guiding? Not really. Does minimum wage, time off etc. apply then? By the letter of the law, yes. Practically, I expect not.

From my risk and safety perspective, the most problematic aspect of these exceptions is the no limits on time off or rest periods. It is now legal for a guide to work 90 days straight. If, somehow, a company managed to sell a 90 day expedition, then that would be great work for the guide. If, however, we are talking about 90 single day trips back-to-back-to-back x90 then there is a problem. Burn out, complacency, exhaustion, over use injury, and compromised client safety are all to be expected.

So, in summary: curious implementation, more operators will be compliant, and these new exceptions clean up the ESA with regards to multi-day guiding. Creates a bunch of ambiguity when it comes to day guides.

Update: September 13, 2019

A representative from the Ministry of Labour I had been in touch with answered some of the questions posed above. Here is the specific responses from the MOL:

1. Is the definition of wilderness guiding limited to overnight/multi-day remote location guiding?  In other words, does it thereby exclude “day guides” and day trips?

No, the definition is not limited to those employees who engage in overnight or multi-day trips.

"wilderness guide" means a person who is employed to guide, teach or assist one or more persons while those persons are engaged in activities in a wilderness environment, including the following activities:

a) back-country skiing and snowshoeing,

b) canoeing, kayaking, and rafting,

c) dogsledding,

d) hiking,

e) horseback riding,

f) rock climbing,

g) operating all-terrain vehicles or snowmobiles,

h) wildlife viewing,

i) survival training,

but does not include,

j) a hunting or fishing guide, or

k) a student under 18 years of age who works 28 hours each week or less or who is employed during a school holiday.

There is no minimum amount of time an employee must be in the wilderness environment for the definition to apply.  For example, if a 20-year-old employee is employed to assist the employer's clients while the clients are rafting in a wilderness environment, the employee will be considered to be a wilderness guide – and subject to the wilderness guide exemptions and special minimum wage rate – even if the employee is able to return home every evening because the rafting trips are only of a few hours' duration and the employee lives nearby.

2. Does the nature of the day’s duties determine whether the block minimum wage rate applies? For example, if the day is spent doing preparation work, packing etc. would the block minimum wage rate apply?

Whether the wilderness guide definition applies to an employee is determined by what the employee was employed to do.  This means that the definition will apply to an employee who is employed to guide, teach or assist people when they are engaged in activities in a wilderness environment, even if some of the employee's time is spent performing tasks that are not guiding, teaching, or assisting, and even if some of the employee's time is spent performing tasks outside of the wilderness environment.  For instance, the duties of wilderness guides may also include preparatory work for expeditions, such as terrain research or equipment testing.

For example, a 20-year-old employee who is employed to teach the business's clients rock-climbing in a wilderness environment may spend time – sometimes a significant amount of time – checking, preparing and packing the equipment before the clients arrive.  Because this employee is employed to teach people rock-climbing in a wilderness environment, the wilderness guide definition will apply to that employee, and the wilderness guide exemptions and special minimum wage rate will apply to that employee, even during the time the employee dealt with the equipment prior to the clients' arrival.

As another example, a 25-year-old employee who is employed to guide people on their canoe trip in a wilderness environment may spend time – sometimes a significant amount of time – travelling with the clients in a non-wilderness environment to the site where the canoeing will begin. Because this employee is employed to guide people while they are engaged in canoeing in a wilderness environment, the wilderness guide definition will apply to that employee, and the wilderness guide exemptions and special minimum wage rate will apply to that employee, including during the time the employee travels to the wilderness environment.

The two examples above are to be distinguished from a situation where an employee may have two (or more) distinct roles with an employer at different times of the year, only one of which is to guide, teach or assist people who are engaged in activities in a wilderness environment.  For example, an employee may be engaged in sales and marketing for seven months of the year and in guiding for five months of the year.  If the criteria for the wilderness guide definition are met during the five months the employee is engaged to guide, the employee will be considered to be a wilderness guide for those five months and will be subject to the wilderness guide exemptions and special minimum wage rate for those five months.

Overall take away: if you are hired to be a guide in any of the listed activities in a 'wilderness' setting (still not defined), then the minimum wage and exceptions apply to you, regardless of the day's task.

Update February 1, 2021:

After a COVID season that either shut down some operations or ran others ragged for being too busy (summer 2020), and the original implementation season in 2019, it seems there is a range of operator responses to the Wilderness Guide Exemption. Many I spoke to who provide activities on the list claim that they do not operate in a 'wilderness' environment, and therefore the rule does not apply to them. In some cases this claim is a stretch, albeit that the MOL did not define the term wilderness. From the 'reasonable person' test, most adventure guide operations take place in remote-ish locations - even day trips - that most would call wilderness. Regardless, those operators have reverted to an hourly wage from their non-compliant day rate previously used. This is good news; there is not a lot of value in haggling with your employer if the pay is more or less the same either way. From my seat, it is more desirable for guides to be covered under the Employment Standards Act rather than exempt from it. There is more benefit to be under than outside of it, gaining opportunity for time off, holiday and overtime pay etc. 

Multi day operations are pretty happy with the rule as it solves a major grey area from before, and the base pay rate is below what many of them were paying anyhow (perhaps except for the entry/apprentice guide jobs). Note that kids' summer camp wages fall under a different exemption - one that is misunderstood and/or abused by camp operators. There is another round of exemptions regarding holiday pay for live-on-site workers. Read the ESA!

To be clear, if an operator chooses to pay hourly (and is above the provincial minimum wage), then that position can supersede the Wilderness Guide exemption and those rules do not apply. However, it must be one or the other: day rates that meet the minimum (and potentially no time off provisions - there is nothing stopping an employer doing the right thing and letting workers rest...), or else hourly wage and all the ESA benefits that all other workers get. Hourly pay and no time off? Illegal. 

What if your employer is not compliant? Number one, you have to consider that they may not know the rules. Ask a respectful and professional question if their contracts and pay scale is compliant with Ontario's ESA and if they use the Wilderness Guide exemptions for day rates (if they offer you a day rate, by default they have to follow the exemption rules for pay rate; if its hourly they have to meet that minimum wage). 

Secondly, you would report the employer to the Ministry of Labour. You can do so anonymously or you can make a claim against your employer for wages owed. You can find your regional office here.